Andreoff v. Toronto Transit Commission, 2015 HRTO 1714

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jeffrey Andreoff

Applicant

-and-

Toronto Transit Commission

Respondent

INTERIM DECISION

Adjudicator: Brian Eyolfson

Date: December 21, 2015

Citation: 2015 HRTO 1714

Indexed as: Andreoff v. Toronto Transit Commission

WRITTEN SUBMISSIONS

Jeffrey Andreoff, Applicant

Self-represented

Toronto Transit Commission, Respondent

Marni Tolensky, Counsel

Introduction

1This Application was filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on May 6, 2014, and alleges discrimination with respect to employment on the basis of disability. The Application is scheduled to be heard on February 1 and 2, 2016.

2This Interim Decision addresses the respondent’s Request for an Order During Proceedings (“RFOP”) that the applicant comply with his disclosure obligations concerning arguably relevant documents, under Rule 16.1 of the Tribunal’s Rules of Procedure.

RFOP

3In the RFOP, the respondent seeks production of all arguably relevant documents from the applicant, including complete notes and records from 14 of the applicant’s various treating physicians, doctors, specialists and other medical practitioners, from September 28, 2012 to October 2014. The respondent also requests that the applicant be ordered to produce complete notes and records from any other doctor, specialist, physiotherapist, psychotherapist, kinesiologist or practitioner that he consulted with, or was referred to, for the same time period. In addition, the respondent asks that the disclosure deadline under Rules 16.2, 16.3, 17.1 and 17.2 of the Tribunal’s Rules be extended, in order to afford the respondent an adequate opportunity to review the applicant’s additional production after it is disclosed.

4The respondent submits that the level and nature of any disability the applicant might have is clearly relevant, as the central issues in this case revolve around the applicant’s allegation that the respondent failed to appropriately accommodate him and acted against the medical information provided by his doctors. The respondent submits that the applicant has put his medical condition, restrictions and ability to work into issue, and that the clinical notes and records of all of his treating physicians, specialists and practitioners, during the relevant time period, are clearly relevant and must be produced. The respondent submits that when the applicant provided disclosure under Rule 16.1 of the Tribunal’s Rules, he did not provide any clinical notes, reports or records from any doctors, specialists or practitioners who saw him during the relevant time period in the Application.

5The applicant opposes the RFOP. In his Response to the RFOP, the applicant submits that the respondent should have all the necessary medical documents pertaining to his case, as he provided all medical documents requested by the respondent during his medical leave and they should be in his work file. He submits that he will be using those documents to support his case.

ANALYSIS

6Rule 1.7(p) of the Tribunal’s Rules 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.

7The Tribunal has held that parties must disclose non-privileged documents that are “arguably relevant” to an issue in the Application, although the disclosed documents may not necessarily be admitted as relevant at the hearing. See Lampi v. Princess House Products Canada, 2008 HRTO 1, wherein the Tribunal also stated as follows with respect to the threshold for production and disclosure:

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.

8In cases where applicants have placed their medical condition at issue before the Tribunal, the Tribunal has required applicants to obtain and produce arguably relevant medical documents from their physicians and other medical practitioners. See Bosnitch v. Humber College Institute of Technology and Advanced Learning, 2014 HRTO 1245 (“Bosnitch”) and Baldeo v. Securitas Canada Ltd., 2015 HRTO 1395.

9In the present case, the applicant has placed his medical condition and restrictions at issue before the Tribunal. He alleges that, following a motor vehicle accident on September 28, 2012, he has experienced a number of medical conditions which he identifies in the Application. The applicant alleges, among other things, that the respondent has failed to accommodate him. More particularly, he alleges that the respondent has continued to go against the recommendations of his physician and psychologist, and has disputed his doctor’s diagnosis and ignored his doctor’s instructions. He also alleges that he was denied sick benefits, and, at one point, relieved of his duties, but reinstated.

10With respect to how the alleged events have affected him, the applicant states, in part, that he has been left with emotional scars, and that he has had trouble sleeping since the accident and the respondent has exasperated that. He states that he has been working really hard to get better but every time he deals with a particular representative of the respondent there is always an issue to bring him down.

11The applicant also describes having various disability-related needs in the Application, and refers to being in physiotherapy. The applicant also confirmed in the Application that he plans to submit medical reports or documents related to his particular needs at the hearing, and referred to “Dr.’s, physiotherapists, psychologists notes.”

12With respect to the applicant’s position that he intends to rely only on the medical documents that he provided to the respondent during his medical leave to support his case, I note that the Tribunal stated as follows in Bosnitch, at para. 14:

An applicant who alleges discrimination or harassment on the basis of disability in an application before the Tribunal, and seeks remedies including remedies for a worsening in the condition, may have to disclose more medical documentation than he or she did in their employment… Furthermore, an applicant who alleges discrimination on the basis of disability must prove that he or she has a disability as defined by the Code. This may require production of medical documentation that has not previously been produced to an employer.

13In the present case, based on the information before me, I am satisfied that the medical documents that the respondent has requested that relate to the applicant’s medical conditions that he refers to in his Application are arguably relevant to the issues raised in the Application. The applicant has clearly put his medical conditions and restrictions, commencing on September 28, 2012, at issue, including the impact of the respondent’s alleged actions on his health, and he will have to establish that he has a disability or disabilities within the meaning of the Code. I also note that the respondent’s Response to the Application, dated October 1, 2014, refers to the respondent receiving recent medical documentation from the applicant’s doctor supporting the applicant’s inability to perform any work for the respondent. In the circumstances, the applicant is required to produce medical documentation, as set out below.

ORDER

14The Tribunal orders that the applicant obtain the following arguably relevant documents and deliver them to the respondent as soon as possible and by no later than 21 days from the date of this Interim Decision:

1. Complete notes and records from all of the applicant’s treating physicians, doctors, specialists and practitioners, named in the respondent’s RFOP, that relate in any way to the applicant’s medical conditions referred to in the Application, for the September 28, 2012 to October 2014 time period.

2. Complete notes and records from any other treating physicians, doctors, specialists and practitioners that the applicant saw, consulted or was referred to, that relate in any way to the applicant’s medical conditions referred to in the Application, for the September 28, 2012 to October 2014 time period.

15The parties should make disclosure under Rules 16.2, 16.3, 17.1 and 17.2 as soon as possible and are directed to do so by no later than 35 days from the date of this Interim Decision.