A.B. v. The Corporation of the City of Brampton, 2015 HRTO 1713

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

A.B.

Applicant

-and-

The Corporation of the City of Brampton

Respondent

INTERIM DECISION

Adjudicator: Laurie Letheren Date: December 21, 2015 Citation: 2015 HRTO 1713 Indexed as: A.B. v. Brampton (City)

WRITTEN SUBMISSIONS

A.B., Applicant

Jean-Alexandre De Bousquet, Counsel

The Corporation of the City of Brampton, Respondent

Susan Crawford, Counsel

Introduction

1The hearing of this Application is scheduled for January 14 and 15, 2016.

2This Interim Decision addresses the Request for Order During Proceedings filed by the respondent in which it sought production of documents from the applicant.

3Pursuant to the Tribunal’s Rules of Procedure, and as set out in the Notice of Hearing, the parties were required to provide to one another copies of their arguably relevant documents by August 31, 2015. They were also required to provide to one another copies of the documents they intended to rely upon at the hearing (which would ordinarily be a subset of their arguably relevant documents) and witness statements by no later than November 30, 2015.

4On October 26, 2015, the respondent filed a Request for Production (“Request”). The items that it is requesting that the applicant produce are:

a. Copies of all doctors’ notes and records to establish the medical advice being given to A.B. throughout his request for accommodation, the observations of the physicians, the confirmation of specialist appointments that had to be rescheduled; and information provided to physicians for the purposes of obtaining the medical opinions.

b. Copies of the lease agreement entered into for A.B.’s business in 2014 (or 2013 if it was entered into earlier) as well as written correspondence between A.B. and the landlord leading up to the lease being executed.

c. Copies of any written correspondence between A.B. and representatives of the publications the City provided in its document disclosure.

d. Copies of any other articles or publications A.B. wrote for any on-line or other publication relating to his business in 2013 or 2014.

e. Copies of A.B.’s corporate income tax returns for 2013, 2014 and any other year he claims he was operating his business while employed by the City.

f. Copies of financial statements for the years referenced in paragraph d.

g. Copies of any incorporation documents A.B. prepared for his business showing the date he incorporated. If A.B. filed as a sole proprietor, please provide the corporate documents confirming same.

5In his response to the Request, the applicant indicated that he had provided the respondent with the documents requested in paragraph 4 b, c, d and g.

6The applicant objects to providing the documents described in paragraph 4 a, e, and f.

7The applicant submits that he has provided extensive medical evidence which is all of the relevant medical evidence. He submits that the respondent’s request is in the nature of a “fishing expedition” into the applicant’s medical history. He submits that the Tribunal must balance the applicant’s privacy with fairness of the process. He requests that if the Tribunal orders production that the documents be produced to the Tribunal for redaction and that the Tribunal order who may view these documents.

8On December 17, 2015, the applicant wrote to the respondent and the Tribunal and advised that other records had been ordered but were not yet received.

9The respondent submits that the medical notes and records are relevant to the issue of whether the respondent failed in its duty to accommodate the applicant. The respondent alleges that the applicant was absent from work for a period of time from June to September 2014 and that he did not provide medical documentation to support this absence. The respondent opposes the request to redact the medical documents. The respondent agrees to limit access to the medical documents to its legal counsel and its human resources department which is the instructing client in this Application.

10The applicant submits that he has already submitted copies of invoices for services provided to clients and that the income tax returns are not relevant.

11The respondent submits that the income tax returns are clearly relevant to the issues of mitigation of the applicant’s potential damage award and to the issue of whether he was carrying on his accounting practice while absent from his employment with the respondent.

12He states that there are not financial statements that he could provide as none exist.

Analysis

13The Tribunal will generally order disclosure of arguably relevant documents, unless the documents are privileged or raise privacy concerns, see McKay v. Toronto Police Services Board, 2009 HRTO 1220. “Arguable relevance” is not a particularly high threshold, but the party seeking production must establish that the documents in question may prove or disprove a fact in issue in the dispute.

14I find that the applicant’s medical conditions during the period of time during which he alleges that the respondent failed in its duty to accommodate his disability are arguably relevant. The documents that the applicant has disclosed appear to be the notes and assessments that he had previously provided to the respondent and notes from his attending physician. These notes indicate that he is seeing two other doctors, Birdi and Chan.

15I therefore find that the applicant must obtain all medical records, test results and clinical notes for the period from August 1, 2013 to October 8, 2014 from all his treating physicians and specialists and disclose them to the respondent.

16I do not see the need to have these documents produced to the Tribunal for redaction before they are disclosed to the respondent. The respondent’s undertaking to restrict access to the documents to legal counsel and the human resources department fairly addresses the applicant’s concern about potential breaches of his privacy.

17I also find that the applicant’s personal income tax returns and corporate income tax returns, if they exist, are arguably relevant to the issues to be addressed in this Application. Business financial statements may also be relevant but the applicant has advised that none exist. The applicant is claiming retroactive income losses as a remedy while the respondent is alleging that the applicant was working at his business during the period of time at issue. The tax returns are required to appropriately address these issues.

ORDER

18By January 7, 2016, the applicant shall provide the respondent, and file with the Tribunal, copies of the following:

• all medical records, test results and clinical notes from all the applicant’s treating physicians and specialists for the period of August 1, 2013 to October 8, 2014; and

• Personal and corporate income tax returns for the years 2013 and 2014.

19A copy of the Tribunal’s Mediation/Adjudication Agreement is attached to this Case Assessment Direction should the parties wish to participate in this process at the hearing.