Berry v. Kingston General Hospital, 2015 HRTO 925

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Susan Berry

Applicant

-and-

Kingston General Hospital and Dino Loricchio

Respondents

INTERIM DECISION

Adjudicator: Alison Renton

Date: July 14, 2015

Citation: 2015 HRTO 925

Indexed as: Berry v. Kingston General Hospital

WRITTEN SUBMISSIONS

Susan Berry, Applicant

Self-represented

Kingston General Hospital and Dino Loricchio, Respondents

Kathryn Bird, Counsel

1This Application alleges discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2After the Tribunal served the Application, the respondents filed a Request for Order During Proceedings (“RFOP”), which requested the following:

a. An order requiring that the applicant provide her consent for the release of the Occupational Health and Safety File;

b. An order extending the deadline for the filing of the respondents’ Response to a date 35 days from the its receipt of the consent for the release of the documentation; and

c. An alternative order that if the applicant does not consent, the Application will be dismissed as an abuse of process.

3The applicant filed a Response to the RFOP opposing the respondents’ RFOP.

4Rule 16 of the Tribunal’s Rules of Procedure contemplates that parties to an Application will not be required to exchange arguably relevant documents until 21 days after the Notice of Hearing is sent out by the Tribunal, which in the normal course is after the Application, Response and any Reply have been filed.

5Absent exceptional circumstances, the Tribunal will not permit a request for particulars or production of documents to delay the filing of a complete response. See: Robertson-Sim v. Georgian Bay General Hospital, 2013 HRTO 1966 at paras. 4 – 5; Glynn v. Lowe’s Companies Canada, 2009 HRTO 1180. However, the Tribunal has also recognized that it is sometimes appropriate to order access to an internal medical file at an early stage in order to ensure that the respondents are in a position to meaningfully respond to the Application. See: Bryer v. (City) Toronto, 2010 HRTO 2389, Johnston v. Toronto Transit Commission, 2011 HRTO 923, Fossella v. Toronto Transit Commission, 2014 HRTO 1572, and Campbell v. Thunder Bay (City), 2014 HRTO 1759.

6As with many employers, the institutional respondent has established a special unit to interact with its employees in respect of disability issues in order to ensure that employees’ medical information will be kept confidential. The fact that the institutional respondent has established a system which protects its employees’ privacy does not change the fact that the files at issue are the respondents’ own records regarding the applicant and their interactions with her.

7In my view, as in the cases cited above, the respondents will not be in a position to meaningfully respond to all of the allegations in the Application without access to the applicant’s health information. I decline to order the respondents’ alternate request, that the Application be dismissed as an abuse of process as the applicant does not consent to this disclosure.

8Instead, I find it appropriate to issue an order, with restrictions, granting the respondents access to, and the authority to use and disclose, the applicant’s health information before requiring the respondents to file their Response(s).

order

9The Tribunal makes the following order:

1. The respondents, their counsel, advisors, individuals giving instructions to counsel, and potential witnesses (in relation to health information disclosed) are permitted to access, review and use the applicant’s health information obtained from the Occupational Health and Safety Department effective immediately and before requiring the respondents to file their Response(s);

2. The respondents must file their Response(s) within 35 days from the date of this Interim Decision.

10I am not seized with this matter.