Baldeo v. Securitas Canada Ltd., 2015 HRTO 1395

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Raywatie Baldeo

Applicant

-and-

Securitas Canada Ltd.

Respondent

-and-

United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union (United Steelworkers), Local 5296

Intervenor

INTERIM DECISION

Adjudicator: Mark Hart Date: October 20, 2015 Citation: 2015 HRTO 1395 Indexed as: Baldeo v. Securitas Canada Ltd.

WRITTEN SUBMISSIONS

Raywatie Baldeo, Applicant Self-represented

Securitas Canada Ltd., Respondent Daniel McDonald, Counsel

1This is an amended Application dated November 5, 2014 alleging discrimination with respect to employment because of disability and sex contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The purpose of this Interim Decision is to address the respondent’s Request for Order dated August 7, 2015 seeking an order to compel the applicant to produce all arguably relevant medical documentation.

3The applicant made disclosure of her arguably relevant documents on July 23, 2015. In her cover letter, the applicant states: “I consider my medical to be very sensitive and privileged so I am not going to disclose any at this time.” In the applicant’s Response to the respondent’s Request for Order, she repeats that she is “not going to disclose any Medical at this time”.

4I appreciate that the applicant may consider her medical documentation to be confidential and sensitive. In the ordinary course, the confidentiality of medical documentation is respected and protected. However, this is a legal proceeding commenced by the applicant in which she has put her medical conditions and restrictions in issue in two ways: (1) by alleging that she has certain documented medical conditions and restrictions that were not accommodated by the respondent; and (2) in her description of the alleged impact on her of the violation of her rights under the Code.

5In any proceeding where an applicant puts medical conditions and restrictions and the medical impact on her in issue, medical documentation that is arguably relevant to those issues must be disclosed in accordance with the Tribunal’s Rules of Procedure. While the Tribunal’s Rules do not require the disclosure of documents that are subject to “privilege”, legally recognized privilege does not extend to medical documentation prepared in the ordinary context of an applicant seeking or receiving medical treatment. Quite simply, arguably relevant medical documentation in the applicant’s possession needs to be disclosed to the respondent. Further, in order for the applicant to succeed in this proceeding, she will need to be able to prove that she has a disability or disabilities within the meaning of the Code, that these disabilities resulted in needs that required accommodation by the respondent, and that she brought these needs to the respondent’s attention. All of this will require the applicant to provide medical documentation.

6I note that in her amended Application, the applicant at point 16 on page 11 lists eight specific letters in her possession which she identifies as detailing her medical restrictions. All of these letters would be arguably relevant to the matters at issue in this proceeding and must be disclosed to the respondent and filed with the Tribunal. In addition, the applicant refers on this same page to “WSIB Reports” that she also says detailed her medical restrictions. Once again, any such WSIB reports also would be arguably relevant to the matters at issue in this proceeding and must be disclosed to the respondent and filed with the Tribunal.

7Further, at point 18 on page 12 of the Application, the applicant lists certain other medical documents that she herself says are important to her Application. These include the doctor’s notes of Dr. Rana, which the applicant says would record her complaints. The medical file of Dr. Rana is arguably relevant to the matters at issue in this proceeding, both in terms of any complaints that the applicant may have reported to Dr. Rana regarding her work at the Coca Cola site and also in relation to the alleged impact on her of any failure to accommodate her disability-related needs. These medical records need to be disclosed from the date of the applicant’s transfer to the Coca Cola site on May 14, 2012 to the present. The applicant needs to obtain these medical records from Dr. Rana and serve them on the respondent and file them with the Tribunal.

8In addition, in this same section of the Application, the applicant makes reference to certain reports from Dr. Saul and Dr. Kachooie. I note that at point 16 of the Application, the applicant makes reference to a report from Dr. Saul dated August 3, 2004 which she says she has in her possession. If there is some other report by Dr. Saul regarding her medical conditions or restrictions which is not in her possession, the applicant needs to obtain any such report from Dr. Saul and disclose it to the respondent and file it with the Tribunal. In addition, to the extent that there is a report from Dr. Kachooie regarding her medical conditions or restrictions, the applicant once again needs to obtain this from Dr. Kachooie, serve it on the respondent and file it with the Tribunal.

9In this same section of the Application, the applicant also makes reference to “reports from other doctors”. If there are any other reports from other doctors regarding the applicant’s medical conditions or restrictions, then the applicant needs to obtain these reports from the relevant doctors, serve them on the respondent and file them with the Tribunal.

10Still further, if the applicant has seen any other doctor or medical professional since May 14, 2012 to the present regarding either her medical restrictions or the impact on her of the alleged failure to accommodate these restrictions, then as with Dr. Rana, she needs to obtain a copy of the medical records from any such doctor(s) or medical professional(s) and serve these records on the respondent and file them with the Tribunal.

ORDER

11Within 14 calendar days of the date of this Interim Decision, the applicant shall serve on the respondent and file with the Tribunal the following medical documentation:

a. The eight specific letters in her possession which she identifies as detailing her medical restrictions at point 16 on page 11 of the amended Application;

b. All WSIB reports, letters or other documents in her possession that discuss her medical conditions or restrictions;

c. The medical file of Dr. Rana from May 14, 2012 to present;

d. Any further report(s) regarding her medical conditions and restrictions from Dr. Saul apart from the report dated August 3, 2004;

e. Any report(s) regarding her medical conditions or restrictions from Dr. Kachooie or any other doctors or medical professionals who treated the applicant; and

f. The medical file(s) of any other doctor(s) or medical professional(s) that the applicant has seen since May 14, 2012 regarding either her medical restrictions or the impact on her of the alleged failure to accommodate these restrictions.