Dubois v. Vale Canada Limited, 2015 HRTO 1520

Human Rights Tribunal of Ontario

B E T W E E N:

Thomas Dubois Applicant

-and-

Vale Canada Limited Respondent

INTERIM DECISION

Adjudicator: Ken Bhattacharjee Date: November 12, 2015 Citation: 2015 HRTO 1520 Indexed as: Dubois v. Vale Canada Limited

WRITTEN SUBMISSIONS

Vale Canada Limited, Respondent Stephanie N. Jeronimo, Counsel

1The purpose of this Interim Decision is to address the respondent’s request that the Tribunal make an order to facilitate access to the applicant’s medical records held by the respondent’s Occupational Medicine Department.

2On June 2, 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 respondent discriminated against him with respect to employment because of his disability. In support of his allegations of discrimination, he referred in detail to certain medical conditions.

3On August 20, 2015, the respondents filed a Request for an Order During Proceedings (“RFOP”), which requested that the Tribunal make the following orders:

1. The applicant shall execute and deliver the consent form in his possession to the respondent’s counsel.

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

3. In the alternative, if the applicant does not execute and deliver the consent form, the Application shall be dismissed as an abuse of process.

4In its submissions in support of its request, the respondent stated that, for the purpose of filing its Response to the Application, it has asked the applicant to execute a consent form granting it access to medical records on him which are held by its Occupational Medicine Department, but he has failed to do so. The respondent stated that the Department will not release any such records without the express consent of the applicant because of the Personal Health Information Protection Act, 2004, S.O. 2004, c. 3, Sch. A (“PHIPA”), which requires such consent. The respondent stated that it is unable to make a full answer and defence to the allegations in the Application without having had the opportunity to review such records.

5The applicant did not file a Response to the respondent’s RFOP, and the time for doing so has passed.

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 has established a special department to interact with its employees with respect to disability issues in order to ensure that employees’ medical information will be kept confidential in compliance with the PHIPA. The fact that the respondent has established a system which protects its employees’ privacy does not change the fact that the records at issue are the respondent’s own records regarding the applicant and its interactions with him.

9In my view, as in the cases cited above, the respondent will not be in a position to meaningfully respond to the allegations in the Application without access to medical records on the applicant which are held by its Occupational Medicine Department. Specifically, it needs such access to explain how it treated the applicant, and why it acted as it did. Therefore, with some modifications, I find that it is appropriate to issue the first two orders requested by the respondent.

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’s Occupational Medicine Department waiving confidentiality and granting the respondent and its counsel access to all medical records on him from November 1, 2012 onwards which are held by the Department. If the applicant does not possess such a consent form, he shall obtain the appropriate form from the Department.

2. Upon the request of the respondent or its counsel, the Occupational Medicine Department or its designate shall release to them all medical records on the applicant from November 1, 2012 onwards which are held by the Department.

3. Within 35 days of the applicant providing a signed consent form to the Occupational Medicine Department, the respondent shall file a Response to the Application.

11If the applicant fails to sign and provide a consent form to the respondent’s Occupational Medicine Department, the respondent should file a further RFOP with written submissions addressing why the Application should be dismissed as an abuse of process.

12I am not seized of this matter.