Borba v. Toronto Transit Commission, 2014 HRTO 497

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Carla Borba Applicant

-and-

Toronto Transit Commission Respondent

INTERIM DECISION

Adjudicator: Maureen Doyle Date: April 9, 2014 Citation: 2014 HRTO 497 Indexed as: Borba v. Toronto Transit Commission

WRITTEN SUBMISSIONS

Toronto Transit Commission, Respondent Gerald Griffiths, Counsel

Introduction

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").

2The respondent (TTC) has not filed its Response, but has filed a Request for Order During Proceeding (RFOP) seeking an order:

1. Authorizing the respondent to access, use and/or disclose personal health information from the applicant's Occupational Health and Claims Management (OHCM) file for the purpose of this Application to the extent that this information relates to or is a matter in issue in the Application;
2. Permitting the respondent to review the relevant documents in these files that contain personal health information, for the purpose of this Application, with individuals who are expected to be witnesses in respect of the documents and/or whose employment duties include providing instruction and/or responding to the Application;
3. Granting an extension to the respondent for filing its Response, to begin 35 days from the date of the Tribunal's order.

3The applicant has not responded to the RFOP and the time for doing so has now passed.

BACKGROUND

4The applicant is an employee of the TTC and was working as an operator until 2010, at which point she commenced a modified work assignment called a temporary transitional work placement. In her Application, she alleges that in the autumn of 2013, she was in communication with the respondent employer regarding her medical status. More particularly, she appears to indicate that this communication took place with the Disability Management Specialist at the TTC's Occupational Health and Claims Management-HR. She alleges that on November 22, 2013, her doctor "booked her off sick for two weeks", advising that she should rest until December 9, 2013. She alleges that the TTC advised her in a letter dated November 26, 2013 that her temporary transitional work placement was concluded effective November 21, 2013. She alleges that the failure to permit her to return to modified work December 9, 2013 was discriminatory. She identifies the Disability Management Specialist at the TTC's Occupational Health and Claims Management-HR" (OHCM) as responsible for the decision not to permit her to return to modified work.

5The TTC submits that the applicant has been receiving an accommodation on the basis of a disability since 2010.

6In its RFOP, the TTC identifies the OHCM as a branch of its Human Resources Department. It submits that among other duties, OHCM staff maintains all records relating to TTC employees who apply for workplace accommodation. It submits that files maintained by OHCM contain personal health information.

7The TTC submits that the OHCM staff facilitates the accommodation of employees with medical restriction, by reviewing and assessing their medical restrictions and ability to return to work, and by developing and administering return to work plans.

8The TTC submits that in the course of their duties, the Disability Management Specialists, as well as the TTC's medical consultant, claims adjudicators and director may request, receive, review and/or clarify employees' personal health information and may be "health information custodians", "agents of a health custodian" or "recipients of personal health information" as defined in section 3 of the Personal Health Information Protection Act, 2004, SO 2004, c 3 (PHIPPA).

9The TTC submits that as this Application relates to the TTC's duty to accommodate the applicant, and as she makes various assertions and allegations relating to her medical condition, medical restrictions, the TTC's accommodation of her medical restrictions, and the manner in which she was treated by the TTC's OHCM Department, it is unable to submit a full Response to the Application until it is permitted access to review the documents in the applicant's OHCM file, including personal health information. It also submits that it must be able to discuss those materials with its counsel and with the TTC Human Rights Department. It submits that it is necessary for counsel and instructing parties to be able to review the relevant documents in these files and to identify and review the contents with the relevant witnesses involved in this matter.

10The TTC states that it has written to the applicant on several occasions in order to obtain her consent to release the medical records, but consent has not been provided.

Production of Documents Prior to Response

11Absent 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 similar situations 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 respond meaningfully to the Application, see Bryer v. (City) Toronto, 2010 HRTO 2389, Johnston v. Toronto Transit Commission, 2011 HRTO 923, Power v. Toronto Transit Commission, 2011 HRTO 1462.

12I find that given the nature of the allegations in this Application, the documents which the respondent seeks are arguably relevant.

13The 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.

14As the respondent has not been able to prepare its Response without access to the documents in the OHCM Department files, the respondent is granted an extension of 35 days from the date of this Interim Decision, for filing its Response.

ORDER

15The Tribunal orders as follows:

a. The respondent is granted disclosure use and access to the portion of the applicant's OHCM Department file which relates to or is in issue in the Application, and may use and/or disclose such information for the purpose of responding to and defending the Application;

b. The respondent may review the above-noted documentation from the applicant's OHCM Department file with individuals who are expected to be witnesses in respect of the specific documents as well as individuals whose employment duties include providing instructions and/or responding to the Application and;

c. The respondent's request for an extension of time to file its Response is granted. The respondent is required to file its Response within 35 days from the date of this Interim Decision.

16I am not seized of this matter.

Dated at Toronto, this 9th day of April, 2014.

"Signed by"

__________________________________

Maureen Doyle Vice-chair