Chaumont v. The Roman Catholic Episcopal Corporation of Ottawa, 2014 HRTO 184

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ginette Chaumont Applicant

-and-

The Roman Catholic Episcopal Corporation of Ottawa Respondent

INTERIM DECISION

Adjudicator: Paul Aterman Date: February 7, 2014 Citation: 2014 HRTO 184 Indexed as: Chaumont v. The Roman Catholic Episcopal Corporation of Ottawa

WRITTEN SUBMISSIONS

Ginette Chaumont, Applicant Alan Riddell, Counsel

The Roman Catholic Episcopal Corporation of Ottawa, Respondent Sébastien Huard, Counsel

1This Application alleges discrimination with respect to employment because of disability, sex and age contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). It is scheduled to be heard on March 26, 2014.

2This Interim Decision deals with a request by the applicant to amend her Application and a request by the respondent for production of documents. Both are granted for the reasons set out below.

THE REQUEST TO AMEND THE APPLICATION

3The applicant worked for the respondent for 22 years in various capacities. Her last position was as administrative assistant to the Archbishop. She started in this position early in 2011 and was terminated from it on November 18 of the same year. The applicant alleges that her age, sex and disability were factors in the termination decision, whereas the respondent maintains that her employment was ended because she performed poorly in the job.

4In her initial Application the applicant named personal respondents as well as the corporate respondent. The personal respondents were subsequently removed from the Application on consent. The Application did not request monetary compensation in the form of damages for injury to dignity and self-respect. It sought reinstatement and backpay in the event of reinstatement.

5In the proposed amendments the applicant seeks to change the remedies requested to include compensation for loss of income, compensation for injury to dignity and self-respect, reinstatement and public interest remedies. The other amendments she seeks to make are changes to the narrative portion of her Application. These consist largely of allegations that the respondent knew or ought to have known of her disability, that her disability had a direct impact on her performance and that the respondent should have acted on its alleged knowledge of her disability and provided her with accommodation.

6The respondent opposes any amendment on the grounds that the request has been made late, well after the Application was filed, the parties attempted mediation and arguably relevant documents were produced. It argues that amending the Application at this stage prejudices the respondent in its hearing preparation and the applicant has provided no explanation for the timing of the request.

7What then follows is a series of letters from the parties to the Tribunal in which each party both makes its case to the Tribunal on the request and argues with the other side. The tone of the exchange could be a bit more civil because the facts do not change, regardless of how they are characterised.

8Essentially, the applicant meant to file her request with the Tribunal earlier but failed to do so because of an oversight on the part of her counsel. The applicant argues that the respondent knew of the proposed amendments because it was served with them in July of 2013. The respondent says that it should not be expected to deal with requests that are not served and filed in accordance with the Tribunal's Rules of Procedure.

9In determining requests to amend applications under section 34 of the Code, the Tribunal generally considers the nature of the proposed amendments, the reasons for the amendments, the timing of the request to amend, and the prejudice to the respondent (see Dube v. Canadian Career College, 2008 HRTO 336; Wozenilek v. 7-Eleven Canada Inc., 2009 HRTO 926; and Dunford v. Holiday Ford Sales, 2009 HRTO 1563).

10I do not accept the applicant's argument that the respondent has not been prejudiced by the timing of the request. The Tribunal was not asked to address this issue until December of 2013 and the respondent should not be expected to respond to hypothetical or unperfected requests. Having said that, it seems to me that the proposed amendments do not change the essential character of the applicant's case. The respondent has not made clear how it would have to change its approach to defending this Application should the amendments be allowed. It appears to me that a change in the amount of compensation sought does not alter how it approaches its defence.

11In relation to the proposed amendments to the narrative, it seems to me that these largely constitute an interpretation of the facts on the part of the applicant, rather than the introduction of any new facts. Her claim that the respondent knew or ought to have known about her disability appears to be more in the nature of a conclusion that she draws from the facts already known to the respondent than completely new allegations.

12Had the request never been submitted, a hearing would still have had to deal with: whether she had a disability at the relevant time; the nature of the disability; its impact on her work; whether she told the respondent about it; whether she asked for any accommodation and what, if anything, the respondent did in response to that request. If the amendments are granted these remain the issues to be determined. For these reasons I do not see that there is sufficient prejudice to the respondent that would justify refusing the amendments proposed. The request is allowed and the respondent will have time to file any amendments to its Response in accordance with the timeline set out below.

THE RESPONDENT'S REQUEST FOR PRODUCTION

13The respondent requests production of the applicant's medical history in the period from January 2005 to December 2011. It argues that the applicant's medical records held by her family physician, the records held by any other treating physicians, the applicant's Personal Claim History held by the Ontario Health Insurance Plan ("OHIP") and the applicant's medical history from all pharmacies from which she received prescriptions in this period are all arguably relevant and should have been disclosed to it.

14The respondent's request was made on January 20, 2014, after its counsel twice wrote to the applicant's counsel in January requesting this information. No explanation is provided by the respondent as to why it requests these materials at this late stage.

15The applicant has responded to the request and opposes production on the grounds that the request was made late (and therefore cannot really be of importance to the respondent), is overly broad and invasive of her privacy, and will cause an adjournment if granted.

16The test for ordering disclosure is the arguable relevance of documents and the threshold of arguable relevance is quite low. As indicated in McKay v. Toronto Police Services Board, 2009 HRTO 1220 at paragraphs 12-13, the party seeking production simply must demonstrate a nexus between the information or document sought and the facts or issues in dispute.

17Here the applicant has squarely put the nature, extent and duration of her disability in issue. The amendments to her Application indicate that she made the respondent aware of her condition as early as 2005. I am satisfied that all of the documents requested by the respondent meet the threshold of arguable relevance.

18As to the impact that the unexplained late timing of the respondent's request may have on the scheduled hearing, that is a matter the Tribunal will deal with if and when that problem arises. The parties should only assume that the hearing will proceed.

19I can see no reason why the applicant cannot obtain and disclose her medical records from her family physician and any other physicians who treated her in the period from January 2005 to December 2011. While dealing with OHIP may take longer, the applicant, through her counsel, can impress upon OHIP what is required and by when. The same is true of records of her prescriptions. For these reasons the respondent's request is granted on the terms set out below.

ORDER

20The request of the applicant to amend her Application is granted and the revised Application form filed with her request will be treated as the Application. If the respondent intends to amend its Response it must provide the applicant and the Tribunal with a revised Response no later than February 14, 2014.

21The respondent's request for production of documents is granted on the following terms:

• The applicant is to produce to the respondent as soon as possible and not later than March 4, 2014:
  • all medical records relating to the applicant held by Dr. Genevieve Cote for the period January 2005 to December 2011;
  • all medical records relating to the applicant held by any other treating physicians of the applicant for the period January 2005 to December 2011;
  • the applicant's Personal Claim History held by the Ontario Health Insurance Plan for the period January 2005 to December 2011;
  • the applicant's Patient Medical History Report from all pharmacies that dispensed prescriptions to the applicant in the period January 2005 to December 2011.
• As a first step the applicant is to contact her physicians, pharmacies and the Ontario Health Insurance Plan in writing and to request that they provide her with the requested records as soon as possible and in any event not later than March 3, 2014.
• The applicant is to provide the respondent and the Tribunal with a copy of her written communications to her physicians, pharmacies and the Ontario Health Insurance Plan as soon as possible and not later than February 12, 2014.
• The parties shall provide to each other and the Tribunal their witness lists, witness statements and the documents they intend to rely on at the hearing not later than March 17, 2014.
• The disclosure of the applicant's medical information is solely for the purpose of litigating this Application and the respondent is therefore bound to only use the information for this purpose and not to disclose it to any person not involved in this litigation.