Fay v. Independent Living Services, 2014 HRTO 720

Human Rights Tribunal of Ontario

B E T W E E N:

Deborah Fay

Applicant

-and-

Independent Living Services

Respondent

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: May 20, 2014

Citation: 2014 HRTO 720

Indexed as: Fay v. Independent Living Services

WRITTEN SUBMISSIONS

Deborah Fay, Applicant

Self-represented

Independent Living Services, Respondent

Joseph Tascona, Counsel

1The purpose of this Interim Decision is to deal with the respondent’s request for production of documents from the applicant, and the applicant’s request that one of the respondent’s proposed witnesses not be permitted to testify at the hearing.

2The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, which alleged that the respondent discriminated against her with respect to employment because of her disability. The respondent filed a Response, which denied the allegation of discrimination.

3The Tribunal delivered a Notice of Hearing to the parties, which informed them that the hearing is scheduled for May 26, 27 and 28, 2014,

4The respondent recently filed a Request for an Order During Proceedings, which requested that the Tribunal order the applicant to obtain and produce all clinical records in her doctor’s possession which relate to the diagnosis of her disability. The respondent stated that these documents are relevant because they will show whether or not the applicant has a disability.

5The applicant filed a Response, which opposed producing these records. She stated that she has already produced a doctor’s note which indicated that she was diagnosed with a disability and the date she was diagnosed.

6Rule 1.7(p) of the Tribunal’s Rules of Procedure provides that in order to provide for the fair, just and expeditious resolution of any matter before it, the Tribunal may require a party or other person to produce any document, information or thing and to provide such assistance as is reasonably necessary, including using any data storage, processing or retrieval device or system, to produce the information in any form.

7It is well-established that the basic principle in determining a production request is whether the requested documents or information are “arguably relevant” to the issues in dispute in the proceeding.

8In Lampi v. Princess House Products Canada Inc., 2008 HRTO 1, the Tribunal explained its approach at paras. 8-11:

The threshold for production and disclosure of documents before the Tribunal is “arguable relevance” – not a particularly high bar. There must be some relevance and the party seeking production must demonstrate a nexus between the information or document sought and issues in dispute before the Tribunal: Neusch v. Ontario (Ministry of Transportation) (2002), 2002 CanLII 46508 (ON HRT), 43 C.H.R.R. D/171 (Ont. Bd. of Inquiry) at para 38.

Finding that documents are arguably relevant for production does not mean that such documentation will be admissible at a hearing: Neusch, supra at para 41.

Documents which are arguably relevant may nevertheless not be ordered disclosed if they are privileged, the probative value is outweighed by potential prejudice to the party producing them, or the timing of the request risks derailing a just and expeditious hearing.

The Tribunal is also sensitive to privacy issues….

9In my view, the clinical records in the applicant’s doctor’s possession which relate to the diagnosis of her disability are arguably relevant to the issue of whether or not the applicant has a disability.

10The Tribunal therefore orders the applicant to immediately obtain and disclose to the respondent all clinical records in her doctor’s possession which relate to the diagnosis of her disability. She may black out portions of the records which do not relate to the diagnosis of her disability or other issues in the case. If the applicant fails to comply with this order, at the outset of the hearing, the Tribunal will hear submissions from the parties on whether the Tribunal should dismiss the Application.

11The applicant also requested that the respondent’s human resources coordinator not be permitted to testify because he is also the human resources representative at her current place of employment, and is therefore in a conflict of interest. I disagree. I do not see a conflict of interest that justifies such an extraordinary order. The human resources coordinator will be allowed to testify.