Dickson v. General Motors of Canada Limited, 2015 HRTO 596

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Daniel Dickson Applicant

-and-

General Motors of Canada Limited and Canadian Auto Workers Local 199 Respondents

INTERIM DECISION

Adjudicator: Mark Hart Date: May 8, 2015 Citation: 2015 HRTO 596 Indexed as: Dickson v. General Motors of Canada Limited

WRITTEN SUBMISSIONS

Daniel Dickson, Applicant Bev Chavers, Representative

General Motors of Canada Limited, Respondent David Bannon, Counsel

Canadian Auto Workers Local 199, Respondent Keith Osborne, Representative

1This Interim Decision is issued in response to a number of Requests for Orders that have been filed by the applicant in this matter under the Human Rights Code, R.S.O. 1990, c. H.19, as amended. The hearing in this matter is scheduled to proceed in St. Catharines on May 28 and 29, 2015.

2By Request for Order dated November 25, 2014, the applicant sought permission to have Dr. Paolone testify by telephone in this proceeding. Both respondents object to this manner of proceeding. In support of its objection, General Motors of Canada Limited (“GMCL”) relies upon a number of this Tribunal’s authorities whereby the Tribunal refused to allow an applicant to testify by telephone. In this regard, I note that the applicant does intend to appear and testify in person in this proceeding, and is only requesting that his doctor be permitted to testify by phone. In my view, as I have expressed in other decisions, it is entirely appropriate for a medical professional to testify in human rights proceedings by telephone. As I stated in Cann v. AS 4Finance Ltd., 2014 HRTO 1260 (at para. 9):

. . . it is not at all uncommon for doctors to testify by teleconference at a hearing. While I appreciate that witnesses are often inconvenienced by having to appear in person to testify and are thereby taken away from their work, it seems to me that medical professionals are in a somewhat different category owing to the nature of their work and the frequency with which they are called upon to testify in disability discrimination cases before this Tribunal. Further, in my experience, it is an exceedingly rare situation where I am called upon to assess the credibility of a medical professional, in the sense of whether or not they are telling the truth, as opposed to assessing such things as whether there is a sufficient medical and/or evidentiary basis to support any diagnoses, prognoses or recommendations they may have made. In my view, this can readily be accomplished by hearing the doctor’s evidence by teleconference, as I have done in many cases.

3GMCL has expressed concern about Dr. Paolone being asked to testify about events beyond his personal experience or clinical notes or to provide opinion or hearsay evidence on non-medical matters. If such questions arise at the hearing, they can be addressed by way of objection in the normal course, which can be just as readily dealt with where the witness is on the phone as in the hearing room. GMCL also submits that credibility may be a main issue in respect of Dr. Paolone’s testimony. This is not at all clear to me. It appears to me that Dr. Paolone’s evidence that is relevant to the issues in this proceeding are his diagnosis of the applicant’s medical condition at the relevant time, the medical basis for this diagnosis, the recommended treatment regime, and any knowledge the doctor may have regarding substance abuse by the applicant. These are the typical kinds of matters to which physicians regularly testify, and I do not see anything particularly different about Dr. Paolone.

4Accordingly, the applicant’s request for Dr. Paolone to testify in this proceeding by telephone is hereby granted. The applicant shall make arrangements for Dr. Paolone to be available for a one and a half-hour period on the afternoon of May 29, 2015, for the purpose of giving his evidence. I will interrupt the evidence of any witness who may be testifying at the time of the call, in order to hear Dr. Paolone’s evidence at the scheduled time.

5The applicant filed a Request for Order dated March 17, 2015, seeking production from the respondents of the following:

a. A copy of the applicant’s employment file, including disciplinary action and internal memos;

b. Copies of all grievances handled by the union and their outcomes;

c. List of payout dates for Sun Life.

6As stated in this Tribunal’s Interim Decision dated August 2, 2013 (2013 HRTO 1347), the issues to be determined in this proceeding as against the respondent GMCL are as follows:

a. Whether the denial of disability benefits to the applicant during the period from June 20 to August 15, 2011 amounts to discrimination because of disability;

b. Whether the discontinuance of disability benefits to the applicant beyond September 13, 2011 amounts to discrimination because of disability; and

c. Whether the termination of the applicant’s employment on November 2, 2011 amounts to discrimination because of disability.

7As stated in that same Interim Decision, the issues to be decided in this proceeding as against the respondent Union are:

a. whether the Union has not proceeded further with the applicant’s grievance regarding his contractual separation in November 2011 or otherwise assisted him during the period from and after December 15, 2010 due to discriminatory attitudes about, and disregard for, his mental disabilities; and

b. whether the Union shares liability with GMCL regarding the application to the applicant of a rule or policy whereby an employee who is identified as having a substance abuse problem will be denied disability benefits and thus be subject to contractual separation unless the employee attends a recognized substance abuse program.

8In order to succeed on his request for production, the applicant must establish that the documents he is requesting are arguably relevant to an issue in this proceeding. In my view, the applicant’s production requests are overly broad and do not specifically identify how any of the material sought is arguably relevant to one of the above issues. There is no doubt that there may be material from the applicant’s employment file that is arguably relevant to the identified issues. Under the Tribunal’s Rules, GMCL was under an obligation to disclose all such arguably relevant material, some of which has been included in the materials filed for the hearing. What is required to obtain further disclosure at this stage of the proceeding is not simply a general request for documents from a particular file, but some level of specificity as to the documents sought and a demonstration of how such documents are arguably relevant to an issue raised in this proceeding. That is lacking here.

9Similarly, with regard to the respondent Union, the applicant has requested a copy of all grievances handled and their outcomes. Once again, this is an over-broad request, as there have been numerous grievances filed on the applicant’s behalf over the years which are not relevant to the issues raised in this proceeding. I note that in its materials for the hearing, the Union has filed a copy of a number of grievances from the relevant time period. Again, there is no indication from the applicant as to what he believes is lacking or missing from this production and how any such documents are relevant to the issues in this proceeding.

10Finally, with regard to a list of payout dates for Sun Life, it is unclear what this refers to. Once again, this request is over-broad, as it is not limited to the specific time-frame at issue in this proceeding, which as against GMCL is only from August 31, 2010 forward. It is clear from the material that benefits were paid by Sun Life during the period from May 12 to June 20, 2011 and again from August 15 to September 13, 2011. It is not clear to me how a list of “payout dates for Sun Life”, even if restricted to this period of time, is arguably relevant to the issues raised in this proceeding, which relate to the periods of time when benefits were not paid to the applicant.

11Accordingly, the production requests made by the applicant in his Request for Order dated March 17, 2015 are denied.

12The applicant also filed a number of Requests for Orders all dated April 15, 2015. The first Request is for disclosure of the Sun Life file. GMCL objects to this request on the basis that it is not timely. It takes the position that the applicant has had GMCL’s disclosure for some period of time now and was required to file the documents upon which he intended to rely for the hearing by November 26, 2014, and has only now raised a request for access to the Sun Life file. I agree with GMCL that this request should have been made at an earlier time. However, at the same time, I am aware that the applicant is not represented by legal counsel in this proceeding and at times has been homeless during the relevant period. I also note that, while Sun Life is not a party to this proceeding, the decisions made by Sun Life in relation to the discontinuance of the applicant’s benefits on two occasions in 2011 and GMCL’s reliance on Sun Life’s discontinuance of benefits to contractually separate the applicant are central issues in this proceeding. Accordingly, I am not prepared to deny the applicant’s request solely on the basis that it was not made in a timely manner.

13GMCL takes the position that the Sun Life files are not relevant to the issue of whether GMCL or the Union discriminated against the applicant in this matter, as neither GMCL nor the Union had access to the Sun Life files or reviewed them prior to the termination of the applicant’s employment. It may be true that GMCL did not have access to the Sun Life files at the time it decided to terminate the applicant’s employment. At the same time, one of the issues for this Tribunal in this proceeding will be whether Sun Life, as GMCL’s disability benefits administrator, was acting as GMCL’s agent when it decided to discontinue the applicant’s benefits, such that GMCL is deemed to be liable for Sun Life’s actions pursuant to s. 46.3 of the Code. As indicated above, the actions taken by Sun Life in this matter are central to the determination of the issues. In this regard, I note that GMCL intends to call a Sun Life representative to testify as a witness in this proceeding, and also has disclosed some documents that appear to have been obtained from Sun Life, including reports of Sun Life’s physician consultant. In my view, any documents in the possession of Sun Life relating to the applicant’s claims for benefits during the period from and after August 31, 2010 are arguably relevant to the issues raised in this proceeding and properly ought to be produced.

14I note that the applicant’s Request for Order was not served on Sun Life. However, it appears from GMCL’s Response to the Request for Order that GMCL has the ability to access Sun Life’s files regarding the applicant with the applicant’s express written consent. Accordingly, I am ordering GMCL counsel to forthwith send to the applicant the required consent form to enable GMCL to access all documents in the possession of Sun Life relating to the applicant’s claims for benefits during the period from and after August 31, 2010 to be disclosed to the applicant, GMCL, the Union and this Tribunal and to be used solely for the purpose of this proceeding. The applicant similarly is to sign the consent form provided to him and return it to GMCL counsel forthwith. Upon receipt of the applicant’s written consent, GMCL shall forward the consent to Sun Life and make arrangements for disclosure of these documents to itself and the other parties and file these documents with the Tribunal. The disclosure and filing of these documents shall be completed by no later than May 22, 2015. If any issue arises regarding the implementation of this Order, the parties may contact the Tribunal for further direction.

15By a second Request for Order dated April 17, 2015, the applicant asks for the qualifications of Sun Life’s consulting physician and “supporting documentation on how his decision to deny benefits was made”. As previously indicated, I am aware that at least some of the consulting physician’s reports are already in the materials filed with the Tribunal for the purpose of the hearing. These reports set out the basis for the consulting physician’s conclusions and recommendations. If there are any additional documents pertaining to the relevant period involving the consideration of the applicant’s claims by Sun Life’s consulting physician, then these would appear already to be covered by my order for disclosure of the Sun Life file. With regard to the applicant’s request for this physician’s qualifications, I note that in response to this request, GMCL has disclosed a copy of this physician’s C.V. In my view, no further order is required in relation to this request.

16By a third Request for Order dated April 17, 2015, as amended by Request for Order dated May 1, 2015, the applicant requests permission to add Andy Latham to his witness list. In this regard, I note that Mr. Latham is already shown as a witness to be called by the Union. Accordingly, there is no need to address the applicant’s request.

17By a fourth Request for Order dated April 17, 2015, as amended by Request for Order dated May 1, 2015, the applicant requests permission to add John Hockey to his witness list. In a subsequent letter to the Tribunal dated May 5, 2015, the applicant alleges that Mr. Hockey is the person who withdrew his grievance as well as having been involved in the withdrawal of previous grievances filed by the applicant. I note that it is only the Union’s actions from and after December 15, 2010 that are in issue in this proceeding. I also note that the Union proposes to call a number of individuals to testify as witnesses in this proceeding who had more direct involvement with the applicant’s grievances during the relevant period. On the basis of the material filed to date, I am not satisfied that Mr. Hockey has relevant evidence to provide to this proceeding above and beyond what already will be provided by the Union’s witnesses. If during the course of testimony at the hearing, it becomes apparent that Mr. Hockey has additional relevant evidence to provide, I will entertain a renewed request by the applicant for Mr. Hockey to appear as a witness in this proceeding.

18By a fifth Request for Order also dated April 17, 2015, the applicant has requested a second copy of the Union’s response submission for the hearing. My understanding is that the Union has agreed to provide the applicant with a second copy of its hearing materials, so no order is required.

ORDER

19For the foregoing reasons, I hereby make the following Order:

a. The applicant’s request for Dr. Paolone to testify in this proceeding by telephone is granted. The applicant shall make arrangements for Dr. Paolone to be available for a one and a half-hour period on the afternoon of May 29, 2015, for the purpose of giving his evidence;

b. By no later than May 22, 2015, GMCL shall obtain, disclose to the other parties and file with the Tribunal all documents in the possession of Sun Life relating to the applicant’s claims for benefits during the period from and after August 31, 2010, including all documents pertaining to the involvement of Sun Life’s consulting physician. In order to facilitate this disclosure, GMCL shall forthwith send to the applicant a consent form to enable GMCL to access the specified documents to be used solely for the purpose of this proceeding. The applicant shall forthwith sign the consent form provided to him and return it to GMCL counsel. Upon receipt of the applicant’s written consent, GMCL shall forward the consent to Sun Life and make arrangements for disclosure and filing of the specified documents. If any issue arises regarding the implementation of this Order, the parties may contact the Tribunal for further direction; and

c. All other requests made by the applicant are denied.