Hicks v. Hamilton-Wentworth Catholic District School Board, 2015 HRTO 1285

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Darrell Jordan Hicks

Applicant

-and-

Hamilton-Wentworth Catholic District School Board

Respondent

-and-

Ontario English Catholic Teachers’ Association

Intervenor

DECISION

Adjudicator: David Muir

Date: September 25, 2015

Citation: 2015 HRTO 1285

Indexed as: Hicks v. Hamilton-Wentworth Catholic District School Board

APPEARANCES

Darrell Jordan Hicks, Applicant

Self-represented

Hamilton-Wentworth Catholic District School Board, Respondent

Margot Blight, Counsel

Ontario English Catholic Teachers’ Association, Intervenor

Jerry Raso, Counsel

1This is an Application filed 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.

2In a Case Assessment Direction (“CAD”) issued on June 22, 2015, I directed that a telephone hearing be convened to address the following issues:

a. Whether this Application should be dismissed as an abuse of process because of the applicant’s refusal to comply with the Tribunal’s Order with respect to the production of medical records; and

b. Whether this Application should be dismissed pursuant to section 45.1 of the Code or because it is an abuse of process for it to continue in light of the dismissal of the grievance arbitration by Arbitrator Tacon in her award dated July 22, 2014.

3For the reasons that follow, I find that the Application should be dismissed because it is an abuse of process. I find that the applicant’s continued refusal to comply with the Tribunal’s Order to produce documents without an adequate explanation constitutes an abuse of the Tribunal’s process that prevents the fair just and expeditious adjudication of this Application. In the circumstances, the appropriate remedy to prevent the abuse is the dismissal of the Application. Although not necessary to do so, I also find that pursuant to section 45.1 of the Code, it would be abuse of process to allow this Application to proceed in light of the dismissal of the grievance arbitration commenced on the applicant’s behalf by the intervenor, which grievance was ultimately dismissed.

4The applicant is a teacher who is employed by the respondent school board. He has not been in the classroom with the respondent for some time as a consequence of behaviours in the classroom, which are allegedly related to one or more disabilities. In his Application, the applicant alleges that he provided the respondent with medical clearance to return to work in April 2012. The applicant alleges that the respondent refused to return him to work in a letter dated, May 7, 2012. The applicant alleges that he provided the respondent with a second medical report on June 13, 2012. The applicant has not been returned to work with the respondent since that time.

5In addition to this Application, a grievance was filed on the applicant’s behalf by the intervenor. The central issue in the grievance was the applicant’s fitness to return to classroom teaching. The issues raised in this Application are essentially identical to the issues raised in the grievance and in 2013 HRTO 814, the Application was deferred pending the conclusion of the grievance arbitration.

6In 2014 HRTO 1244, the Application was reactivated on consent of the parties, the arbitration being completed with the dismissal of the grievance as an abuse of the arbitration process.

7On September 29, 2014, the respondent filed a Request for Order (“Request”) seeking the production of a number of medical documents. As part of its Request the respondent made a number of proposals, which it asserted would protect the applicant’s legitimate privacy interests in this material within the requirements of the Tribunal process. Essentially, the same request for production had been made in the grievance arbitration.

8The respondent argued that the requested materials related to a central issue in this case, that being the applicant’s mental fitness to return to work and accordingly they were all arguably relevant. The respondent argued that its Request paralleled an order for medical record production made in the grievance arbitration proceeding dealing with the same issues that are raised in this Application. The respondent also stated that the grievance was dismissed as an abuse of the arbitration process.

9The applicant took the position that the Order sought by the respondent was contrary to the Code. The applicant indicated that he would “never give the legal release to my personal, private, confidential medical files.” The applicant argued that only a judge in a court of law could order such disclosure, if the individual concerned has been charged with a criminal offence. The applicant argued that he had not been charged with a criminal offence and is in good standing with the Ontario College of Teachers.

10Accompanying the applicant’s response to the respondent’s Request was a Request of his own. In his Request, the applicant sought the removal of a number of medical documents “from my HRTO complaint” except for reports that provide a prognosis. The applicant indicated the medical reports he has decided to “keep in the HRTO complaint” are those of his family physician and the Centre for Addiction and Mental Health (“CAMH”).

11In a CAD issued on March 2, 2015 (the “production Order”), I granted the respondent’s Request for Production because the documents appeared to be arguably relevant to the central issue in dispute in the case. The applicant was directed to provide his consent to the release of a number of medical documents or alternatively, confirm that he had taken steps to deliver the same records to the respondent.

12The applicant filed a Request for Reconsideration (Form 20) of the production Order. The Request was denied in 2015 HRTO 302.

13The applicant made various further Requests, which were addressed in a number of CADs. In each instance the applicant asserted that the Tribunal had no authority to make the production Order above and that the production Order was contrary to the Code. He also asserted that it was in violation of the “College of Physicians and Surgeons of Ontario, the Ontario Health Privacy Act, the Ontario Provacy Commissioner and the Personal Health Information Protection Act (sic).” The applicant also argued that the release of this information might be detrimental to his health because it would require him to revisit events of five year ago. He also asserted that he was told that the respondent does not need the information in order to accommodate him.

14The applicant also argued that he is currently teaching as an occasional teacher at two other school boards. He is doing so, he alleges, in conformity with the requirements of a memorandum of agreement made with the respondent, arising out of a prior grievance.

15These points were repeated at the telephone hearing. In addition, the applicant asserted that the production of these materials to the respondent might hinder the accommodation process and might be embarrassing for himself and his family.

Decision

Abuse of Process

16The applicant’s submissions about the Tribunal’s authority to make the production Order it did are without merit. He is also incorrect when he asserts that it would be inappropriate for his treating practitioners to comply with the production Order. As the materials the applicant himself provided indicate, physicians have an obligation to produce medical records in the context of litigation where a summons or court order is issued requiring such production. The applicant is simply wrong when he argues that because the Tribunal is not a court, it cannot order the production of arguably relevant medical records.

17The applicant says that the respondent is only entitled to a prognosis. That is not the case. Where there is a dispute about the medical status of an employee further medical information may be required and where, as in these circumstances, there is litigation with respect to the dispute the parties will be entitled to much more fulsome disclosure of the medical documentation than might be the case in other circumstances.

18Having taken the position that the applicant will never comply with the Tribunal’s production Order, the question is whether or not the Application can proceed? In my view, it cannot proceed and it would be an abuse of the Tribunal’s process for it to continue, in the circumstances. The primary if not the only issue in this case is the mental fitness of the applicant to return to the classroom with the respondent. The applicant asserts that he is able to do so and claims that he has medical clearance to return to work. The respondent has questions about the medical clearance that has allegedly been provided. It is entitled to understand the basis for any medical opinion the applicant is relying upon and to challenge that advice. Without the medical documentation that has been ordered to be produced, the respondent’s ability to understand the applicant’s assertions that he is able to return will be significantly impaired.

19Section 23(2) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 and the Tribunal’s Rules of Procedure provide that the Tribunal may make orders or give directions to prevent abuse of its process. The Social Justice Tribunals of Ontario Common Rules, which form part of the Tribunal’s Rules of Procedure, provide as follows:

A8 ABUSE OF PROCESS

A8.1 The tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.

20In my view, the only appropriate remedy for the applicant’s refusal to comply with the Tribunal’s production Order is to dismiss the Application. I come to this conclusion for two linked reasons. Firstly, it is unfair to the other parties and would tend to bring the Tribunal’s process into disrepute to tolerate a party’s complete defiance of a Tribunal Order. The Order made is a production Order going to the central issue in dispute in the proceeding. When the issue was first raised, the applicant argued that the respondent production request was contrary to the Code and illegal. Those positions were considered and rejected. At the preliminary hearing, the applicant raised new concerns such as embarrassment to his family, retraumatization etc. These new arguments are not sufficient to in effect reconsider the production Order that was made and at this stage do not justify the applicant’s ongoing refusal to produce this material. It is important to note that the applicant’s refusal to produce this material has been his position for two or more years, in the arbitration and before the Tribunal. The applicant’s reasons for refusing have changed but his ultimate view that the respondent is not entitled to the material has remained unchanged. In my view, the applicant has articulated no reasonable excuse for his refusal to comply. In such circumstances, the dismissal of the Application appears to be the obvious remedy. Secondly and perhaps most critical, given the centrality of the issues addressed by the material that has been ordered to be produced, the respondent’s ability to defend its position and answer the applicant’s claim is fatally compromised by the applicant’s refusal to comply. In such circumstances, it seems to me, the only appropriate remedy for such an abuse of process by an applicant is the dismissal of the Application.

21In addition, I find that it is an abuse of process for the applicant to seek to re-engage the Tribunal’s process where by his own conduct the grievance filed on his behalf was dismissed as an abuse of process. This is forum shopping of the most obvious kind. As discussed above, a grievance was filed to which this Application was deferred. That grievance was dismissed as an abuse of the arbitration process because of the applicant’s conduct in that proceeding. In my view, it would be inappropriate and an abuse of the Tribunal’s process to entertain this Application further in these circumstances. The abuse of process is made more stark given that the grievance was dismissed in significant part because of the identical issue bringing this proceeding to a halt – the applicant’s refusal to produce documents when ordered to do so.

Section 45.1

22Although it is not necessary to do so, it follows from my reasons above that this Application should be dismissed pursuant to section 45.1 of the Code because the substance of it has been appropriately dealt with in the arbitration proceeding.

23In Edwards v. Heydary Hamilton Professional Corporation, 2012 HRTO 1864, I made the following comment about section 45.1 of the Code (para.25}:

In my view, the section is broadly worded to be responsive to the myriad of circumstances where human rights claims can be adjudicated. It is, as the Supreme Court pointed out in Figliola, intended to prevent re-litigation of issues that have already been determined, not to facilitate duplicative litigation. It is concerned not only with preventing an abuse of the Tribunal's process but is cast more broadly to enable the Tribunal to respond to the other concerns engaged where matters already determined are included in an Application before the Tribunal. These other concerns include the important public policy goals that there be an end to litigation and that no one should be called upon repeatedly to respond to the same claims. Another important consideration that is often raised in this context is the preservation of private and public resources in resolving workplace disputes. See Toronto (City) v. Canadian Union of Public Employees, Local79, 2003 SCC 63, at para 38.

24The Tribunal has also held that section 45.1 includes within its scope the principles underlying the common law doctrines of issue estoppel, res judicata, collateral attack and abuse of process amongst other legal rules, which seek to prevent the relitigation of issues already determined and to preserve the integrity of the legal process.

25In considering the application of section 45.1 of the Code, the Tribunal has determined that it requires a two part analysis: (1) whether there was another proceeding and if so, (2) whether it appropriately dealt with the substance of the Application.

26It is well established that a grievance arbitration is a “proceeding” within the meaning of the section.

27As regards the second part of the test, the question is whether or not the applicant had a full and fair opportunity to know the case he had to meet and the opportunity to present his case before an adjudicator with the jurisdiction to apply the Code. As argued by the respondent, it is not necessary that the human rights claim be considered by the adjudicator. See Noble v. York University, 2009 HRTO 1201 and Cunningham v. CUPE 4400, 2011 HRTO 658.

28In my view, there is no dispute that the applicant had a full and fair opportunity to know and present his case before an adjudicator with the authority to determine the issues raised in this case and provide him a fulsome and appropriate remedy if he made out his case. In the end, the arbitrator was prevented from determining these issues because of the applicant’s conduct in the case, not because the issues were not before the arbitrator or because she lacked jurisdiction. In my view, such circumstances justify the dismissal of the Application pursuant to section 45.1.

29For all of these reasons, the Application is dismissed.