Yahya Gulma v. Toronto Transit Commission, 2016 HRTO 1023

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Yahya Gulma

Applicant

-and-

Toronto Transit Commission

Respondent

-and-

Canadian Union of Public Employees and its Local 2

Intervenors

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: August 3, 2016

Citation: 2016 HRTO 1023

Indexed as: Gulma v. Toronto Transit Commission

WRITTEN sUBMISSIONS

Toronto Transit Commission, Respondent

Patricia Matusiak, Counsel

1The applicant filed this Application alleging discrimination in employment on the basis of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2This Interim Decision addresses the respondent’s request for access to certain personal health information contained in the respondent’s Occupational Health and Claims Management (“OHCM”) file pertaining to the applicant. The Interim Decision also addresses the respondent’s request for an extension of time to file its Response.

Request for access to, use and disclosure, of applicant’s health information

3The applicant alleges that the respondent discriminated against him because he is colourblind.

4The respondent submits that it needs access to the applicant’s file kept by the Occupational Health and Claims Management Section, which is part of the respondent’s Human Resources Department. This medical file is deemed to be personal health information. Pursuant to the Personal Health Information Protection Act, 2004, S.O. 2004, c. 3, Sch. A access to the medical file may not be permissible unless the applicant gives her consent or a court or Tribunal orders it.

5The respondent also requests permission to review and/or disclose any relevant documentation or information in the applicant’s OHCM file with individuals who are expected to be witnesses in this matter and/or whose employment duties include providing instructions related to the Application.

6The applicant has not responded to the respondent’s request and the time for doing so has passed.

7Rule 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.

8Absent exceptional circumstances, the Tribunal will not permit a request for particulars or production of documents to delay the filing of a complete response: Glynn v. Lowe’s Companies Canada, 2009 HRTO 1180 at para 8. However, the Tribunal has also recognized in a similar situation 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: Bryer v. (City) Toronto, 2010 HRTO 2389.

9As with the employer in Bryer, above, the 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 respondent has established a system which protects its employees’ privacy does not change the fact that the medical file at issue is the respondent’s own record regarding the applicant and its interactions with her.

10In my view, the respondents will not be in a position to meaningfully respond to all of the allegations in the Application without access to the medical file regarding how it treated the applicant and why it acted as it did. It is therefore appropriate to order production of arguably relevant documents in the OHCM file before requiring the respondent to file its Response, subject to the conditions set out below which are consistent with the conditions set in Johnston v. Toronto Transit Commission, 2011 HRTO 923, and Power v. Toronto Transit Commission, 2011 HRTO 1462.

Extension of Time

11The respondent requests that it be granted an extension of time for the filing of its Response until 35 days from the date on which the Tribunal issues its decision in respect of its Request. In the ordinary course, respondents have 35 days from the date of receipt of the Application to submit their Responses. In the circumstances, the respondent’s extension request is appropriate.

Orders

12The Tribunal makes the following orders:

a. Counsel for the respondent shall have access to the portion of the applicant’s OHCM file that relates to or is in issue in the Application, and may use and/or disclose such information for the purpose of responding to and defending the Application;

b. Counsel for the respondent may review the relevant documents in the applicant’s OHCM file with those employees in the Occupational Health and Claims Management Department who have custody of or responsibility for the applicant’s file as well as any employees of the respondent who will be providing instructions to the respondent’s counsel; and

c. The respondent must file its Response within 35 days from the date of this Interim Decision.

13I am not seized of this matter.