Kaitlin Ryan v. College of Nurses of Ontario, 2014 HRTO 476

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kaitlin Ryan Applicant

-and-

College of Nurses of Ontario and Her Majesty the Queen in Right of Ontario as represented by the Minister of Health and Long-Term Care and the Minister of the Attorney General Respondents

-and-

Ontario Nurses Association Intervenor

INTERIM DECISION

Adjudicator: Douglas Sanderson Date: April 7, 2014 Citation: 2014 HRTO 476 Indexed as: Ryan v. College of Nurses of Ontario

APPEARANCES

Kaitlin Ryan, Applicant Danielle Bisnar, Counsel

College of Nurses of Ontario, Respondent Raj Anand and Katharine Montpetit, Counsel

Her Majesty the Queen in Right of Ontario as represented by the Minister of Health and Long-Term Care and the Minister of the Attorney General, Respondent No one appearing

Ontario Nurses Association No one appearing

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to goods, service and facilities and membership in a vocational association because of disability. This Interim Decision addresses a Request for an Order During Proceedings filed by the applicant in which she seek production of certain documents from the respondent College of Nurses of Ontario (the “College”).

Background

2In her Application, the applicant asserts that section 5.1 (2) [formerly section 9 (6)] of O. Reg 275/94 of the Nursing Act, 1991, S.O. 1991, c. 32 ("Regulation 275/94") creates a temporary class registration for qualified applicants for registration that is automatically revoked after six months. The applicant alleges that this automatic revocation and the College’s registration process adversely affect applicants with disabilities and does not provide for individual accommodation. The respondents deny that either the regulation or the College’s processes are discriminatory and also assert that section of the regulation in question is a bona fide qualification under section 11 of the Code.

The Request

3The applicant filed a Request for an Order During Proceedings on March 13, 2014 seeking an order to require the College to produce the following documents:

1. Any and all historical versions of the Declaration of Registration Requirements Form (the “Declaration Form”) and any related Fact Sheets;

2. Any and all minutes of meetings of the Council of the College relating to the requirement that applicants for registration declare whether they have a physical or mental condition that could affect their ability to practice nursing;

3. Any and all Briefing Notes to the Registration Committee regarding the above noted requirement; and,

4. Organizational Chart setting out the staffing and governance structure of the College.

4The applicant submits that these documents are arguably relevant to the issues raised in this Application. The applicant submits that she has raised allegations of discrimination regarding the College’s registration process, including the requirement for applicants to disclose whether they suffer from a “physical or mental condition” in the College’s Declaration of Registration Requirements Form and the adequacy of the College’s resources for processing applications when such a declaration is made. The applicant submits that she is not asking to create documents that do not exist and noted that the College already disclosed similar documents regarding the Registration Regulation.

The College’s Response

5The College filed a Response to a Request for an Order on March 27, 2014. The College that the documents described in paragraph 3(1)-(3), above, are not arguably relevant and their production should be refused. The College states that it has provided an organizational chart from the relevant time period to all parties.

6The College submits that the applicant has not raised either in the Application or Reply any allegation regarding the requirement for applicants for registration to disclose whether they suffer from a physical or mental condition on the Declaration Form. The College submits that, rather, the applicant’s allegations are related to delay in processing her General Class Registration and the automatic revocation of her Temporary Class Registration pursuant to Regulation 275/94. The College submits that the applicant has not explained how historical versions of the Declaration Form are arguably relevant to this Application. The College submits that the Application arises out of its own particular facts and concern the version of the Declaration Form completed by the applicant and the fact sheet available at the relevant time, both of which the College submits it has disclosed.

Analysis and Decision

7At the pre-hearing stage, the Tribunal will generally order disclosure of arguably relevant documents, unless the documents are 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. Arguable relevance is defined by the allegations set out in the pleadings. See Sinclair v. London (City), 2008 HRTO 48 and Wright v. Dhawan 2012 HRTO 103.

8The allegations contained in the Application and Reply focus on the discriminatory effect on registration applicants with disabilities of the automatic revocation of Temporary Class Registration pursuant to Regulation 275/94 and the failure to incorporate the duty to accommodate into the regulation and the College’s registration processes. The Application does not, in my view, contain allegations that the requirement that applicants for registration disclose physical or mental conditions is itself discriminatory. As a result it is not clear to me that the documents related to the requirement to declare such conditions are arguably relevant to the issues raised in the applicant’s pleadings. Further, the applicant has not stated how the documents she requested may prove that the respondents discriminated against her by not accommodating her disability-related needs. In my view, the fact that the College disclosed analogous documents regarding another issue does of itself render the documents the applicant seeks arguably relevant. Having reviewed the analogous documents, the applicant would presumably be able to describe why she believes the documents she seeks to have disclosed may be arguably relevant to her allegations, but she has not done this.

9The applicant’s request is denied.