Hill v. Toronto Transit Commission, 2015 HRTO 1156

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Robert Hill

Applicant

-and-

Toronto Transit Commission

Respondent

INTERIM DECISION

Adjudicator: Naomi Overend

Date: September 1, 2015

Citation: 2015 HRTO 1156

Indexed as: Hill v. Toronto Transit Commission

WRITTEN SUBMISSIONS

Robert Hill, Applicant

Self-represented

Toronto Transit Commission, Respondent

Patricia Matusiak, Counsel

1In this Application, the applicant alleges that he sustained a back injury, which the respondent failed to accommodate, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2On July 10, 2015, the respondent filed a Request for an Order During Proceedings (Form 10) and a Request for a Summary Hearing (Form 26). In the Form 10, the respondent requests that the Tribunal (1) defer the Application pending the completion of a related grievance process; (2) dismiss portions of the Application for delay; and (3) grant an order authorizing the respondent to access, use and/or disclosure of the applicant's personal health information contained in his TTC Occupational Health and Claims Management file ("the OHCM file"). It did not file a Response, and asks that the Tribunal grant an extension of the deadline to file its Response of at least 35 days from the date the Tribunal addresses the disclosure of the OHCM file.

3Althought the applicant filed a Response to a Request for Order (Form 11), he did not set out his position on the request to defer, the delay issue or the request for his OHCM file.

Analysis and Decision

4In the absence of any meaningful Response from the respondent, the Tribunal cannot rule on whether to send this matter to a summary hearing and/or a preliminary hearing on delay. It would appear from the material submitted by the parties thus far, that the union grieved only a small portion of the allegations found in the Application. In any event, the information submitted by the parties suggest that the grievance has not proceeded beyond step 3 (arbitration is step 5), and that it has remained inactive since early February 2015. It would not be appropriate to defer in these circumstances. If the circumstances change, the parties may wish to consider filing a new deferral request.

5The respondent submitted that the applicant's allegations relate to his medical condition, restrictions and the respondent's accommodation of his medical restrictions. The respondent submits that since the applicant has placed these matters in issue before the Tribunal, the documents in the OHCM file are relevant to the respondent's defense of the applicant's allegations against it. The respondent submits that it requires access to these documents in order to meaningfully respond to the Application.

6The respondent submits that Tribunal authorization is necessary because there may be a conflict with respect to privacy standards required by applicable legislation, in particular the Personal Health Information Protection Act, 2004, S.O. 2004, c. 3, Sched. A ("PHIPA"). The respondent notes that the Tribunal has granted the order it seeks in other cases in which similar circumstances arose.

7Before 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. I 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.

8It is important that any order granting the respondent access to this file is not overly broad, thereby allowing the respondent access to records that do not relate to the applicant's alleged disability in issue.

Order

9The Tribunal orders as follows:

a. The respondent is granted disclosure and access to the applicant's OHCM File regarding the back injury that gave rise to his Application, his medical restrictions and his consumption of Tylenol 3, including any medical notes, documents and/or information provided by the applicant and documents and/or information relating to the respondent's efforts to accommodate and/or pay benefits to the applicant;

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.

10I am not seized of this matter.