Richard Fredericks v. Toronto Transit Commission Sick Benefit Association (Incorporation), 2014 HRTO 334

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Richard Fredericks

Applicant

-and-

Toronto Transit Commission Sick Benefit Association (Incorporation)

Respondent

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: March 12, 2014

Citation: 2014 HRTO 334

Indexed as: Fredericks v. Toronto Transit Commission Sick Benefit Association (Incorporation)

WRITTEN SUBMISSIONS

Richard Fredericks, Applicant

Self-represented

Toronto Transit Commission Sick Benefit Association (Incorporation), Respondent

Steve Lavender, Counsel

1The applicant filed an Application with this Tribunal under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, which alleged that the respondent discriminated against him with respect to employment because of disability.

2After the Tribunal served the Application, the respondent filed a Request for an Order During Proceedings (“RFOP”), which requested the following:

1. An order granting the respondent, its legal counsel, and the Toronto Transit Commission’s Human Rights Department access to the applicant’s Occupational Health and Claims Management (“OHCM”) files as they relate to specific claims which are the subject of the Application.

2. An order extending the time for delivery of a Response in this matter to 35 days following the Tribunal’s decision with respect to the RFOP or the release of the OHCM file, whichever is later.

3The applicant filed a Response to the RFOP, which opposed the respondent’s Request.

4In Robertson-Sim v. Georgian Bay General Hospital, 2013 HRTO 1966, when considering a similar Request, the Tribunal stated the following at paras. 4-5:

Absent 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.

The respondent is unable to access medical documents and communications that are in its possession which are arguably relevant to this matter because of privacy legislation. It 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.

5I agree with this reasoning, and find that it applies to the case at hand. The respondent’s Request is therefore granted. I am not seized of this matter.