Jeanette Feres v. Toronto Transit Commission, 2014 HRTO 980

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jeanette Feres

Applicant

-and-

Toronto Transit Commission

Respondent

INTERIM DECISION

Adjudicator: Douglas Sanderson

Date: July 4, 2014

Citation: 2014 HRTO 980

Indexed as: Feres v. Toronto Transit Commission

WRITTEN SUBMISSIONS

Jeanette Feres, Applicant

No one appearing

Toronto Transit Commission, Respondent

Marni Tolensky, Counsel

1This is an Application filed on May 23, 2014 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability. The applicant states that she was diagnosed with Post Traumatic Stress Disorder (“PTSD”) in late 2012 and required accommodation. The applicant alleges that in June 2013 the respondent assigned her work that was outside of her disability related restrictions and declined to accommodate her.

2On June 18, 2014 the respondent filed Requests for Order During Proceedings (“Requests”). The respondent requests that the Tribunal grant an order: 1) authorizing the respondent to access, use and/or disclosure the applicant’s personal health information contained in her TTC Occupational Health and Claims Management file (“the OHCM File”) as maintained by the respondent employer; 2) permitting the respondent to review and/or disclose the relevant documents in the OHCM File with individuals who are expected to testify regarding documents in the OHCM File and/or will provide instruction for purposes of responding to the Application; and 3) granting an extension of the deadline to file its Response of at least 35 days from the date the Tribunal issues its order with respect to these Requests.

3The respondent submitted that the applicant’s allegations relate to her medical condition, restrictions and the respondent’s accommodation of her medical restrictions. The respondent submitted that, as a result, the applicant has placed these matters in issue before the Tribunal. The respondent submitted that the majority of the documents regarding these issues are contained in the OHCM File and that these documents are relevant to the respondent’s defense of the applicant’s allegations against it. The respondent submitted that it requires access to these documents in order to make full answer and defense to the Application.

4The respondent submitted that Tribunal authorization is necessary because there may be a conflict with respect to privacy standards required by applicable legislation. The respondent indicates that the expectations and protections under the Personal Health Information Protection Act, 2004, S.O. 2004, c. 3, Sched. A (“PHIPA”), for health information custodians regarding disclosure may be different from the duty imposed on employers by the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 (“OHSA”). The respondent submitted that the Tribunal has granted the orders it seeks in other cases in which similar circumstances arose.

5The applicant did not file a response to the respondent’s request and the time for doing so has passed.

Analysis and Decision

6Before ordering production of documents, the Tribunal must be satisfied that the documents in question are “arguably relevant”, and that they are not 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. A finding that a document is arguably relevant does not necessarily mean that the document will actually be found to be relevant or admissible at a hearing. The respondent is correct in noting that the Tribunal has granted similar requests. See, for example, Johnston v. Toronto Transit Commission, 2011 HRTO 923, Power v. Toronto Transit Commission, 2011 HRTO 1462 and O’Brien v. Toronto Transit Commission, 2012 HRTO 170.

7I am satisfied that the documents contained in the OHCM File are arguably relevant and that the respondent requires access to them in order to meaningfully respond to the Application. In my view, however, the respondent’s request is overly broad as it seeks access to all of the applicant’s records contained in the OHCM File. The applicant’s allegations concern her restrictions related to PTSD in late 2012 and the respondent’s alleged failure to accommodate her in June 2013. In my view, it is appropriate to restrict the respondent’s access to the OHCM File to the issue of the applicant’s PTSD in the period of late 2012 up to and including June 2013.

Order

8The Tribunal orders as follows:

a. The respondent is granted disclosure and access to the applicant’s OHCM File regarding PTSD from September 2012 up to and including June 2013;

b. The respondent’s advisors, instructors and potential witnesses (in relation to information contained in the applicant’s OHCM File) are the only individuals permitted to access and use the applicant’s health files as identified in (a); and

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

9I am not seized of this matter.