Hamilton v. York Region District School Board, 2015 HRTO 1142

Human Rights Tribunal of Ontario

B E T W E E N:

Claudia Hamilton Applicant

-and-

York Region District School Board, Aneta Fishman, Teresa Estriga, Penny Philpott, Janet Hicks, and Liisa Tessier Respondents

INTERIM DECISION

Adjudicator: Ken Bhattacharjee Date: August 27, 2015 Citation: 2015 HRTO 1142 Indexed as: Hamilton v. York Region District School Board

WRITTEN SUBMISSIONS

Claudia Hamilton, Applicant Henry Hamilton, Representative

York Region District School Board, Aneta Fishman, Teresa Estriga, Penny Philpott, Janet Hicks, and Liisa Tessier, Respondents Patricia G. Murray, Counsel

1The purpose of this Interim Decision is to address the respondents’ request that the Tribunal (1) make orders to facilitate their access to the applicant’s medical documents, and (2) grant them an extension of time to file their Response to the Application.

2On April 10, 2015, the 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 respondents discriminated against her with respect to employment because of her disability. In the narrative of her Application, she referred in detail to medical documents to support her allegations of discrimination.

3On July 10, 2015, the respondents filed a Request for an Order During Proceedings (“RFOP”), which requested that the Tribunal make the following orders, among others:

1. The applicant shall sign a consent form waiving confidentiality to all documents in the possession of the respondent school board’s Disability Management department.

2. The Disability Management department or its designate shall release all medical documents on the applicant in its possession to the respondents or their counsel covering the period from September 2012 to the present.

3. The respondents shall file a Response to the Application 35 days following the receipt of a signed consent form from the applicant.

4In their submissions in support of their request, the respondents stated that, for the purpose of filing their Response to the Application, they have asked, and the applicant has refused, to execute a consent form granting them access to medical documents on her which are held by the respondent school board’s Disability Management department. The respondents stated that because the medical documents provided by employees to the department are private and sensitive, the department will not release any such documents unless the employee executes a consent form, or the department is required to release them by law. The respondents stated that they are unable to file a meaningful Response to the Application until such time as they and their counsel receive medical documents on the applicant which are held by the department.

5On July 21, 2015, the applicant filed a Response opposing the respondents’ RFOP. In her submissions, the applicant stated that there are sufficient details in her Application for the respondents to file a Response.

6Rule 16 of the Tribunal’s Rules of Procedure contemplates that parties to an Application will not be required to exchange arguably relevant documents until 21 days after the Notice of Hearing is sent out by the Tribunal, which in the normal course is after the Application, Response and any Reply have been filed.

7Absent exceptional circumstances, the Tribunal will not permit a request for particulars or production of documents to delay the filing of a complete Response. See Glynn v. Lowe’s Companies Canada, 2009 HRTO 1180 at para 8. However, the Tribunal has also recognized that it is sometimes appropriate to order access to an internal medical file at an early stage in order to ensure that a respondent is in a position to meaningfully respond to an 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.

8As with the employers in the cases cited above, the respondent school board has established a special department to interact with its employees in respect of disability issues in order to ensure that employees’ medical information will be kept confidential. The fact that the respondent school board has established a system which protects its employees’ privacy does not change the fact that the files at issue are the respondent school board’s own records regarding the applicant and its interactions with her.

9In my view, as in the cases cited above, the respondents will not be in a position to meaningfully respond to the allegations in the Application without access to medical documents on the applicant which are held by the respondent school board’s Disability Management department. Specifically, it needs such access to explain how it treated applicant, and why it acted as it did. Therefore, I find that it is appropriate to issue the orders requested by the respondents.

10The Tribunal therefore makes the following orders:

1. Within five days of the date of this Interim Decision, the applicant shall sign and provide a consent form to the respondent school board’s Disability Management department waiving confidentiality and granting the respondents and their counsel access to all medical documents on her from September 2012 onwards which are held by the department. The applicant shall obtain the appropriate consent form from the department.

2. Upon the request of the respondents or their counsel, the Disability Management department or its designate shall release to them all medical documents on applicant from September 2012 onwards which are held by the department.

3. Within 35 days of the applicant providing a signed consent form to the Disability Management department, the respondents shall file a Response to the Application.

11I am not seized of this matter.