Mucaria v. St. Clair College of Applied Arts & Technology, 2015 HRTO 1689

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Vita Mucaria

Applicant

-and-

St. Clair College of Applied Arts & Technology, Angela Passador, and Irene Moore Davis

Respondents

INTERIM DECISION

Adjudicator: Dawn J. Kershaw
Date: December 16, 2015 Citation: 2015 HRTO 1689 Indexed as: Mucaria v. St. Clair College of Applied Arts & Technology

WRITTEN SUBMISSIONS

Vita Mucaria, Applicant Self-represented

St. Clair College of Applied Arts & Technology, Angela Passador, and Irene Moore Davis, Respondents Jean Leslie Marentette, Counsel

Introduction

1This Interim Decision addresses:

a. the applicant’s November 17, 2015 request to be permitted to amend her Application to include an additional remedy of $50,000 for “time and effort lost due to my injury and harassment in the classroom as well as online”;

b. the respondents’ November 26, 2015 request for production of the applicant’s Pre-entrance Health Examination completed by her physician or nurse practitioner and the applicant’s Health History completed by her.

2The respondents filed a Form 11 Response to the applicant’s Request for an Order During Proceedings. The applicant did not file a Form 11 Response to the respondents’ Request for an Order During Proceedings.

3A hearing in this matter is set for January 18 and 19, 2016.

Add Remedy/Allegations

4In determining requests to amend applications, the Tribunal generally considers the nature of the proposed amendments, the reasons for the amendments, the timing of the request to amend, and the prejudice to the respondent. See, for example, Odell v. TTC, [2001] OHRBID No. 2, Dube v. Canadian Career College, 2008 HRTO 336, Wozenilek v. 7-Eleven Canada Inc., 2010 HRTO 407.

5The applicant states that she wants $50,000 compensation for the injury and harassment in the classroom and online, and asserts that she was not able to finish the ECE program or the shorter PSW program, without further explanation other than she alleges “those comments that were mentioned supposedly by myself were never made and the injury was never logged like it should have been on paper”.

6The respondents submit the applicant’s request expands the scope of the Application because there is no mention of in class harassment in the Application, nor is there any reference to the applicant’s attendance or lack of success in the PSW program.

7Having considered the factors set out above, I grant the applicant’s request to amend the remedy sought in his Application. The Tribunal has regularly granted requests to amend remedies up to the date of the hearing. See, for example, Marino v. Compuware Corporation of Canada, 2011 HRTO 1390, and Loney v. Combusco Enterprises, 2011 HRTO 1050.

8The applicant referred in her Application to snide comments made between her supervising teacher and her co-worker after her fall, which may have occurred in the classroom. She also refers to being “cyber-bullied […] through email because [her supervising teacher] couldn't understand [her] medical conditions.” I do not see the applicant’s requested amendment, in that regard, as enlarging the complaint, but simply adding a monetary remedy.

9With respect to the applicant’s reference in her request to not being able to complete the shorter PSW program, the applicant did not include this in her original Application. It is not clear to me that she is seeking to amend her Application for any reason other than to add a monetary remedy. If this factors into the determination of remedy, the applicant may refer to her failure to complete the PSW program. If the applicant intended to broaden the scope of her Application with this amendment, she can address this at the outset of the hearing, and the respondents will be given a chance to respond, and may request an adjournment of the hearing, if necessary.

10The remedial amendment is made without any determination by the Tribunal as to the appropriateness of the remedy sought, and without prejudice to any position the respondent may wish to take regarding this issue.

Respondents’ Request for Production of Documents

11The respondents request production of:

1. the applicant’s Pre-entrance Health Examination completed by her physician or nurse practitioner; and

2. the applicant’s Health History completed by her.

12The respondents state that the applicant alleges she was terminated from her field placement once she disclosed a longstanding medical condition. The respondents assert that the applicant should have disclosed any medical condition in the medical health assessment she was required to obtain from a physician or nurse practitioner of her choice prior to participating in the field placement. In addition, the applicant was to give to the respondent college’s student health nurse medical forms certifying either that the applicant was physically and mentally fit to undertake the duties of the program, or alternatively to identify any medical conditions affecting her ability to participate in the required program activities and the related medical restrictions. Once the form was completed the applicant would have obtained a “Passport to Health”, which she was required to carry with her at all times during her field placement. The respondents do not have access to the completed medical forms because of privacy issues, but understand that the applicant had a clear “Passport to Health” for her field placement.

13The respondents assert the applicant’s Pre-entrance Health Examination and Health History should be disclosed to them as relevant to the following issues:

a. Whether the applicant at the relevant time was suffering from a disability;

b. Whether the respondents would have had any knowledge of the alleged disability at the time of the applicant’s removal from the field placement;

c. The applicant’s credibility.

14The respondents originally requested disclosure from the applicant’s former representative by letter dated August 25, 2015, which was denied by the applicant’s former representative’s letter, dated September 21, 2015. The applicant’s then representative advised that the applicant would not sign the consent to release her medical information.

15Rule 1.7(p) of the Tribunal’s Rules of Procedure permits the Tribunal to order production of any documentation and information in order to provide for the fair, just and expeditious resolution of any matter before it.

16In Lampi v. Princess House Products Canada Inc., 2008 HRTO 1 at para. 8, the Tribunal stated:

The threshold for production and disclosure of documents before the Tribunal is “arguable relevance” – not a particularly high bar. There must be some relevance and the party seeking production must demonstrate a nexus between the information or document sought and issues in dispute before the Tribunal: Neusch v. Ontario (Ministry of Transportation) (2002), 2002 CanLII 46508 (ON HRT), 43 C.H.R.R. D/171 (Ont. Bd. of Inquiry) at para 38.

17In this case, the applicant alleges her field placement was terminated, and she was harassed, because she asserted she had a disability. She has therefore placed her medical condition at issue.

18An applicant who alleges discrimination on the basis of disability must prove that he or she has a disability as defined by the Human Rights Code, R.S.O. 1990, c. H.19, as amended. This may require production of medical documentation that has not previously been produced, if it is arguably relevant to the proceedings.

19Because the date for production of the arguably relevant documents has passed without these being produced and because I find in the circumstances that the medical documentation being sought by the respondents is arguably relevant to the issues raised in the Application, the respondents’ request is granted. The applicant is required to produce copies of the medical documentation requested, or provide a consent to the respondents to obtain same, as set out below.

20The admissibility of any medical documentation will be addressed during the hearing, if necessary.

Arguably Relevant and Hearing Documents

21As the Tribunal notified the parties in the July 23, 2015 Notice of Hearing, under Rules 16 and 17 of the Tribunal’s Rules of Procedure, the parties were obliged to provide the following things by no later than December 4, 2015:

a. a list of the documents they intend to rely on at the hearing (these are the documents that you have chosen to put before the Tribunal from among the documents previously disclosed by both parties) – to one another and to the Tribunal;

b. copies of each of these documents for the Tribunal; and

c. a list of the witnesses with witness statements setting out the intended evidence of each witness – to one another and to the Tribunal.

22It is now almost two weeks past the December 4, 2015 deadline for complying with these obligations and the applicant has not complied with her obligations regarding the exchange and filing of documents and witness statements.

23There are serious consequences for this case if the applicant does not comply with her obligations under the Tribunal’s Rules, as set out below.

DIRECTIONS TO APPLICANT

24By no later than December 23, 2015, the applicant must deliver to the respondents and file with the Tribunal: (1) the documents she intends to rely upon at the hearing, (2) a list of her witnesses and (3) a brief statement describing what her witnesses will say when they testify.

25The applicant is reminded that she must also submit a witness statement for herself, assuming she intends to testify at the hearing. However, if the applicant only intends to testify about the facts already contained in her Application (and Reply, if any), it is sufficient for her to confirm this in writing by December 23, 2015.

26If the applicant has not complied with these directions by December 23, 2015, or communicated with the Tribunal at all, the Application may be dismissed as abandoned.

order

27The Tribunal orders:

a. the applicant’s request to amend her Application to add a monetary remedy is granted.

b. The applicant is directed to obtain and provide to the respondents’ counsel by no later than December 23, 2015 complete and unredacted copies of the Pre-entrance Health Examination and Health History completed by her and her physician or nurse practitioner in advance of her field placement, or an executed release consenting to the release of these medical documents to the respondents.

c. The applicant’s disclosure of this medical documentation is limited to the respondents’ counsel and the clients from whom the respondents’ counsel is obtaining instructions.

d. If the applicant does not include the Pre-entrance Health Examination and Health History in the documents she intends to reply on at the hearing, the respondents may file an amended list of documents they intend to reply on at the hearing by no later than December 30, 2015, or within one week of receiving the documents if they receive them later than December 23, 2015.