Eugene Kowalsky v. Toronto Transit Commission, 2015 HRTO 900

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Eugene Kowalsky

Applicant

-and-

Toronto Transit Commission

Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: July 7, 2015

Citation: 2015 HRTO 900

Indexed as: Kowalsky v. Toronto Transit Commission

WRITTEN SUBMISSIONS

Eugene Kowalsky, Applicant

Davies Bagambire, Counsel

Toronto Transit Commission, Respondent

Steve Lavender, Counsel

Introduction

1In his Application, the applicant alleged that the respondent discriminated against him because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”). The applicant alleged that the respondent discriminated against him when it terminated his employment and failed to accommodate his disability.

2The Application is scheduled for a hearing on October 13 and 14, 2015.

3By Request for Order During Proceedings (“RFOP”), the applicant requested production from the respondent and Dr. Norman Grosser of all clinical notes and records that are in the possession, control and/or custody of Dr. Grosser relating to his examination of the applicant at the request of the respondent. Dr. Grosser practices with MediSys under contract with the respondent. The applicant states that the materials produced should include copies of any diagnostic or other tests carried out by Dr. Grosser as well as their results.

4The applicant alleges that, when he applied for a Bus Operator position with the respondent, the respondent sent him to Dr. Grosser for a medical examination as to his mental and physical fitness to perform the duties of the position. Dr. Grosser examined the applicant and certified him fit to operate a bus for the respondent. The applicant alleges that, at the time of the examination, he advised Dr. Grosser of certain mental health issues from which he suffers. The applicant submits that Dr. Grosser’s clinical notes and records are arguably relevant to the issue of whether the respondent knew or ought to have known that the applicant suffered from mental health issues. The applicant has attempted to obtain the requested materials from Dr. Grosser directly on several occasions but he has not responded to the applicant’s communications.

5In its Response to the RFOP, the respondent states that it has confirmed that Dr. Grosser made no clinical notes during the examination. According to the respondent, the applicant’s entire Medisys file has been disclosed to the applicant as part of its pre-hearing disclosure.

6The applicant replied to the respondent’s Response by noting that Ontario Regulation 114/94 made under the Medicine Act, 1991, S.O. 1991 c. 30 requires physicians to keep certain records including records of the assessment of patients as well the history and particulars of examinations. The applicant submitted that the Tribunal should not rely upon the representation of the respondent but should instead make a third party production order for the production of the requested materials.

Findings

7I agree with the applicant that the requested materials are arguably relevant and this does not appear to be disputed by the respondent. In light of the legislative record-keeping obligations imposed upon physicians, I find it appropriate not to rely upon the respondent’s representation but instead to make a third party production order in this case.

ORDER

8Dr. Norman Grosser is ordered to produce the following to the parties with a copy to the Tribunal within 14 days of the date of this Interim Decision:

all records and clinical notes that are in his possession or control relating to his examination of the applicant at the request of the respondent including, but not limited to, copies of any diagnostic or other tests carried out as well as their results.

9In the event that Dr. Grosser does not have any records and/or clinical notes relating to his examination of the applicant, he must confirmed this fact in writing to the Tribunal in writing with a copy to the parties.

10Based on the respondent’s Response to the applicant’s RFOP, it appears that it has already produced all arguably relevant medical notes and records in its possession. However, if the respondent has in its possession or control any records or clinical notes from Dr. Grosser relating to his examination of the applicant that it has so far not disclosed, it is ordered to disclose them to the applicant and to file a copy with the Tribunal within 14 days of this Interim Decision.

11Since the Tribunal does not have contact information for Dr. Grosser, the applicant is responsible for delivering this Interim Decision to Dr. Grosser.