Desimone v. KRD Inc., 2015 HRTO 144

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jill Desimone

Applicant

-and-

KRD Inc. o/a Dollar Values

Respondent

INTERIM DECISION

Adjudicator: David Muir

Date: January 30, 2015

Citation: 2015 HRTO 144

Indexed as: Desimone v. KRD Inc.

WRITTEN SUBMISSIONS

Jill Desimone, Applicant

Brenda Culbert, Counsel

KRD Inc. o/a Dollar Values, Respondent

Marc DiGirolamo, Counsel

Introduction

1This Application alleges discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The hearing of this case is scheduled to begin on February 20, 2015.

3In her Application the applicant alleges that she suffered an injury to her right shoulder in 2011. She further alleges that she was accommodated in the respondent’s workplace. The applicant alleges that she experienced soreness in her left shoulder and trapezoid muscle on October 22, 2013. She saw her family physician on October 24, 2013, who provided treatments and recommended that the applicant take a week off work. The applicant provided the respondent a brief medical note to this effect on October 24, 2013. The applicant alleges that she was dismissed the following day and was required to work the period of the notice of termination.

4The respondent alleges that the applicant had been advised of poor attendance. The respondent further alleges that the applicant sought to have the weekend of October 25, 2013, off to attend a Halloween party in Sudbury. The respondent alleges the applicant was told that she could not have that weekend off. The respondent alleges that the applicant delivered a medical note to it on October 24 which requested that the applicant be given a week off work. The respondent alleges that the medical note provided no medical reason for the proposed absence. The respondent alleges that the applicant went to Sudbury for the weekend.

5In her Reply, the applicant raises a number of issues in response to the respondent’s Response. However, in relation to the primary issues in dispute, the applicant denies that she was seeking the time off work to attend an event in Sudbury and reiterates her claim that she was off work for medical reasons which she alleges she explained to the respondent on October 25, 2013.

6There is very little that is actually in dispute in this case. The resolution of it may boil down to two related issues: Was there a legitimate medical issue requiring that the applicant take a week off work as an accommodation of any disability related needs; or, was, as the respondent argues, the applicant merely seeking to get time off work by feigning an injury of flare-up of her symptoms.

The parties’ Requests

7The applicant filed a Request for Order During Proceeding to which the respondent has responded. The applicant seeks the following:

a. An Order directing the production of the medical note of her family physician dated October 24, 2013;

b. An Order that her family physician be allowed to give evidence by telephone; and

c. An order preventing three proposed witnesses of the respondent from giving evidence.

8The respondent has also filed a Request seeking the following:

a. An Order requiring the applicant to produce all of her medical records – including those of Dr. Scher, Dr. Ostrowski, and Dr. Pereira;

b. An Order requiring that Dr. Ostrowski and Dr. Pereira be required to give evidence if the applicant wishes to rely on their records.

9The applicant has not yet responded to the respondent’s Request.

Decision

10As indicated, the issues in dispute are quite narrow. I do agree with the respondent that the applicant’s medical condition at the time she requested a week off work is important – indeed it may be determinative. Although the respondent has framed the issue as being whether the applicant was a person with a disability at the time, the dispute is more precisely described, in my view, as whether or not the applicant’s disability-related needs, if any, required that she take a week off work. The need for a week off work was a recommendation of the applicant’s family physician, Dr. Scher. Accordingly the evidence of the applicant with respect to the alleged left shoulder symptoms and that of Dr. Scher with respect to the treatment of these symptoms and the basis for his or her recommendation that the applicant should take a week off work will be required. I also note that it is not clear whether or not the respondent sought any further information of the applicant at the time. It is not clear at this stage why the evidence of Dr. Ostrowski and Dr. Pereira will be required given that it was Dr. Scher’s recommendation that is in issue.

11Dealing with the respondent’s Request first, as I have already indicated the evidence of Dr. Scher will likely be important to the resolution of this issue and he or she will be an important witness. The respondent seeks all of the applicant’s medical records. As such the respondent’s Request is overbroad. What the respondent is entitled to at this stage are the materials Dr. Scher relied on in coming to his or her conclusion as well as any of the medical records or other documentation related to the applicant’s alleged left shoulder injury for a reasonable period prior to he or she making the recommendation that the applicant take a week off work.

12The applicant has provided a number of medical documents, several of which post-date Dr. Scher’s recommendation, and others which significantly pre-date it. It does not appear that she has provided the clinical notes and records with respect to the treatment of the applicant’s left shoulder. In my view the applicant should produce to the respondent, in addition to any other material already produced, Dr. Scher’s clinical notes and records and any other medical documentation in Dr. Scher’s possession and control related to the alleged left shoulder and trapezoid pain and its treatment and any other document or thing which informed the recommendation that the applicant take a week off work for a period of six months prior to the treatment of this alleged injury on October 24, 2013.

13As previously indicated it is not at all clear why Dr. Ostrowski and/ or Dr. Pereira are necessary witnesses and I make no orders with respect to this aspect of the respondent’s Request at this time.

14Dealing with the applicant’s Request, the applicant is entitled to have produced Dr. Scher’s note of October 24, 2013, although I note that it is not really a matter of much dispute that it was provided to the respondent.

15More substantially the applicant has requested that Dr. Scher be allowed to give evidence by telephone conference call. The Tribunal has on many occasions allowed physicians to give evidence by telephone, particularly where it does not appear that there are substantial issues about the physician’s credibility. At this stage and based on the limited materials available to me it is not clear why the respondent will not be able to fairly question Dr. Scher by telephone. However, in the absence of his or her clinical notes with respect to the treatment of the alleged left shoulder injury, it is impossible to be determinative of this issue at this stage. This issue may be revisited at the appropriate time, in the meantime and unless reversed at a later date this aspect of the applicant’s Request is granted.

16As regards the applicant’s third request that certain witnesses be prevented from giving evidence, I leave this issue to the hearing adjudicator to determine. I would observe that in light of what I anticipate will be the issues truly in dispute in this case it may be that the only witnesses necessary to resolve the dispute are the applicant, Dr. Scher, and Kathy Stewart.

17The Tribunal makes the following Orders:

a. The applicant will deliver to the respondent, in addition to any other material already produced, Dr. Scher’s clinical notes and records and any other medical documentation in Dr. Scher’s possession and control related to the alleged left shoulder and trapezoid pain and its treatment and any other document or thing which informed Dr. Scher’s recommendation that the applicant take a week off work for a period six months prior to the treatment of this alleged injury on October 24, 2013. This Order to be complied with within 14 days of the date of this Direction.

b. The respondent will deliver and file the October 24, 2013 note of Dr. Scher within 14 days of this Direction;

c. Dr. Scher will be allowed to give evidence by telephone;

d. The remainder of the parties’ Requests are denied at this stage.